1. We do not think it necessary to set out the long and complicated story on the basis of which the petitioner asks for process to issue against the two persons named in the petition of complaint. The facts are accurately summarized in the order of the Chief Presidency Magistrate made on 27th January 1932. Mr. Pagh maintains that the order should be set aside inasmuch as the Magistrate before making it heard counsel and permitted documents to be filed on behalf of the persons complained against, a procedure not contemplated or warranted by Ch. 16, Criminal P. C. Secondly, Mr. Pugh argues that even if this alleged illegality is not itself sufficient ground for setting aside the order, it should be set aside on the marits.
2. As to the first point the view of Ch, 16 expressed by Sanderson, C. J., and Walmsley, J., in Behari Lal Mukerjee v. Pasupati Chatterjee 17 Cr. L. J. 396 has never been questioned in any decision of this Court and we have no doubt whatever that it is the correct view. The materials on which the Magistrate is to act are expressly limited by Section 203 to the statement on oath (if any) of the complainant and the result of any investigation or inquiry under Section 202.
3. It is contrary to the scheme of the Code to permit the opposite party to appear and argue that process should not issue. Mr. Pugh however concedes that when as here the complainant has asked for and obtained an order for the seizure of the opposite party's books, and also an order restraining the opposite party from operating on his banking account that parties can appear immediately and asked that such orders be vacated. Further it would be unreasonable to expect the Magistrate when deciding whether process should be issued to disregard materials that had been properly brought to his notice by the opposite party as grounds for vacating the order we have mentioned.
4. Here however the Magistrate has done considerably more than this. To take one example, he has allowed the opposite parties to tender evidence in the shape of certified copies of the partition decree and the pleadings in the suit against the other branch of the family and has admitted such evidence to the record. This evidence does not appear to us to be connected with the order for the seizure of the books or the so-called 'stop-order.'
5. We cannot avoid the conclusion that the procedure followed by the Magistrate in this case has been illegal and irregular.
6. The matter however does not end there because the judgment to which we have referred clearly recognizes that this Court in its revisional jurisdiction will not as a matter of discretion interfere when it is of opinion that if the Magistrate had confined himself to the materials which he might legitimately consider the proper order for him to make was an order under Section 203 dismissing the complaint.
7. We have considered the matter from this point of view and while we are anxious that nothing we say shall have a tendency to encourage stale complaints or to load the files of the criminal Courts with cases that can be more satisfactorily dealt with by civil tribunals, we cannot doubt that the complaint and the police investigation do establish a prima facie case with regard to the fictitious equitable mortgage of September 1910, with regard to the fictitious repayment to Jognath in February 1915, and with regard to the transfer of Rs. 19,000 from the family account to the account of Bannerjee and Co. about that time.
8. It is not desirable that we should express any opinion on the merits beyond saying that it appears to us that on the materials properly before the learned Magistrate there was a case that the opposite parties should have been called 'upon to answer and that on such materials alone the learned Magistrate could not properly hold the complaint to be false.
9. In these circumstances following the precedent established by Sanderson, C.J., and Walmsley, J., we think it would be embarrassing for Mr. Sinha to deal further with the case. We therefore set aside the order passed by him under Section 203, Criminal P. C, and we remand the case to him with a direction that he transfer it to the file of some other Presidency Magistrate. Such Magistrate will issue process under Ch. 17 of the Code in respect of the offences disclosed in the complaint and the report of the investigating officer.
10. There is one other matter. When the complaint was filed the complainant obtained an order restraining the opposite parties from operating on certain banking accounts. That order was maintained by us pending the disposal of this Rule. We are of opinion that the order is not necessary, at any rate at the stage that has now been reached, for the determination of the criminal liability of the opposite parties. If the complainant conceives himself entitled to such an order for the purpose of safeguarding any monetary claim he may have he must apply to a civil Court. The stop order' is therefore vacated.
M.C. Ghose, J.
10. I agree.